King v. Bates , 1876 N.H. LEXIS 109 ( 1876 )

FROM CHESHIRE CIRCUIT COURT. The ruling of the court, excluding the evidence offered by the defendants in regard to the possession of the paper containing evidence of the conditional sale by the defendant Bates as his own property, was correct. By the fiftieth rule of court, it is provided "That in all trials, whether by the jury or the court, the plaintiff shall put in his whole case before resting, and shall not thereafter, except by permission of the court, upon good cause shown, be permitted to put in any evidence except such as may be strictly rebutting; and the defendant shall, before resting, put in his whole defence, and shall not thereafter be permitted to put in any evidence, except such as may be in reply to the rebutting evidence put in by the plaintiff."

It must be inferred from the case that the plaintiff introduced evidence tending to show that he had purchased the property in question of Welcome C. Bates, and that said Welcome was the owner or in possession of the same, and had the right to sell the same to the plaintiff. This made the plaintiff's case.

In answer to the case thus made, the defendants introduced evidence to sustain their plea, to wit, that the defendant, Simpson E. Bates, sold the property to Welcome, Upon conditions which had not been performed; and he then rested his case.

It then became necessary for the plaintiff to rebut this evidence, and he attempted to do so by showing that Simpson E. Bates, one of the defendants, had been fully paid for said property, and that so the condition upon which the sale was made had been performed.

After this had been done the defendants proposed to show that said Simpson ad always had the paper in question in his possession. This evidence was substantive in support of the defendant's allegation that he owned the property, or was a conditional vendor of it. It tended to establish the material point in the defence, namely, that the condition had not been performed. The issue raised by the defendants made it incumbent on them to establish two positions: (1) that the sale to W. C. Bates was upon condition, and (2) that the condition was not performed. Upon the second point, the fact that the defendant S.E. Bates had always had the paper in question in his possession, was evidence tending to show that the contract had not been performed by W. C. Bates.

At the stage of the trial then reached, no evidence was competent under the rule of court except such as tended to contradict or explain the evidence offered by the plaintiff in rebuttal, to wit, that W. C. Bates had performed the conditions of the contract. Briggs v. Humphrey, 5 Allen 314; Holbrook v. McBride, 4 Gray 215; York v. Pease, 2 Gray 282.

To hold this evidence competent at the time it was offered would entirely abrogate the rule, for there is but little evidence, which) in its nature is cumulative, that may not also be rebutting. But there is another view upon which the ruling of the court must be sustained. The conduct of the trial, the order of proceeding, is with the discretion of the presiding justice, to the exercise of which no exception can be taken. The orderly course of proceeding requires that the party whose business it is to go forward should bring out the strength of his proof in the first instance; but it is competent for the judge, according to the nature of the case, to allow a party who has closed his case to introduce further evidence. This depends Upon the circumstances of each particular case, and falls within the absolute discretion of the judge, to be exercised or not as he may think proper; and no exception lies to the exercise of that discretion, unless the question of discretion is specially reserved. Cushing v. Billings, 2 Cush. 158; 1 Gr. Ev., secs. 74, 431; Sanford Co. v. Wiggin,14 N.H. 441, 451; Watson v. Walker, 33 N.H. 132; Petition of Groton,43 N.H. 91; Kent v. Tyson, 20 N.H. 121; Bank v. Clough, 39 N.H. 212; Riddle v. Gage, 37 N.H. 620.

The next exception arises upon the refusal of the court to instruct the jury that by the true construction of the contract the defendant Bates could not interfere with the plaintiff's possession of the property till the expiration of six months after March 3, 1873, and upon the instruction that whatever might have been the rights of W. C. Bates as to possession against S.E. Bates, this plaintiff, by his purchase from W. C. Bates, obtained no such rights of possession as to prevent the defendant S.E. Bates from demanding and regaining the possession from him before the expiration of said six months. What the rights of S.E. Bates were, as against W. C. Bates, is of no consequence in this case. The issue here was, What were the respective rights of the plaintiff and the defendants in the property in controversy ? Whether the defendant was, as against his conditional vendor, entitled to the possession of the property in question, is wholly immaterial. The material question is, What was the effect of the sale by W. C. Bates to the plaintiff upon the rights of the defendant S.E. Bates ? what were W. C. Bates's rights in the property before the sale ? Manifestly he was bailee, with the right to become the absolute owner upon complying with certain conditions. Until those conditions were complied with he had no other rights except as bailee. As bailee he had no right to sell or dispose of the property. He held it for S.E. Bates, according to his contract with him. When, however, he sold the property unconditionally to the plaintiffs his bailment ceased. He had violated his part of the contract, and the defendant then had the right to demand and take possession of the property wherever he could find it. The bailment was terminated when W. C. Bates parted with his rights in the property, and the defendant S.E. Bates had then the right to treat the contract as rescinded, and regain the property at any time. San born v. Coleman, 6 N.H. 14; Sargent v. Gile, 8 N.H. 325; Luey v. Bundy, 9 N.H. 298; Bailey v. Colby, 34 N.H. 239.

The exceptions must be overruled, and there must be judgment on the verdict.

Cushing C. J., concurred.